This litigation arose out of a cruise on the Ruby Princess between Sydney, Australia, and New Zealand. The claimant and her husband were passengers on that cruise. The claimant's husband fell ill with Covid-19 while onboard. He was intubated, ventilated, placed into an induced coma, and at one point given only a few days to live. He spent nearly two months in hospital. The claimant also contracted Covid-19. Her symptoms were relatively minor, but she endured witnessing the suffering of her husband and the fear that he was going to die, without being able to be by his bedside because she was in isolation herself. As a result, she suffered a recognised psychiatric illness, namely an adjustment disorder with mixed anxiety and depressed mood.

The claimant, as lead applicant, commenced a representative proceeding (class action) against Carnival plc, the time charterer, and Princess Cruise Lines Ltd, the owner of the Ruby Princess. She sought damages for personal injuries and distress and disappointment of more than AUD 360,000. She claimed that the respondents had failed to comply with guarantees under the Australian Consumer Law, committed the tort of negligence, and engaged in misleading and deceptive conduct in trade or commerce which is prohibited under the consumer law.

Held: Causation and loss have been established on each of the claims. The claimant is successful on her claim for out-of-pocket medical expenses in the sum of AUD 4,423.48 plus interest.

The claimant is also entitled to distress and disappointment damages on all her claims. However, passengers were paid a full refund by the respondents. As the claimant's distress and disappointment damages are assessed at no more than the refund of about AUD 4,400 that she received, she receives nothing on this head of damages.

Furthermore, the effect of the Civil Liability Act 2002 (NSW) is that a claimant can recover damages only if their non-economic loss is of such severity that it is at least 15% of a most extreme case. The claimant's infection gave rise to very mild symptoms, her adjustment disorder was of moderate severity and relatively short duration, and she did not suffer from Long Covid. Her non-economic loss for personal injuries is assessed as 8% of a most extreme case. She accordingly receives no damages for her personal injuries.

The respondents argued against the existence of a duty of care in negligence. The Judge, referring to Kate Lewins, International Carriage of Passengers by Sea (Sweet & Maxwell, 2016) Ch 3, noted that the respondents' arguments with regard to the novelty, floodgates, and burden of the duty were somewhat undermined by the fact that a significant number of countries have ratified or acceded to, or otherwise made applicable, the Athens Convention 1974 or the Protocol to that Convention (the Athens Convention 2002). As at the time of judgment, Athens 1974 had about 28 ratifications or accessions, and Athens 2002 had 30. These countries included countries with substantial passenger fleet tonnage.

Article 3.1 of the Athens Convention 1974 provides that the carrier shall be liable for the damage suffered as a result of the death of, or personal injury to, a passenger if the incident which caused the damage occurred in the course of the carriage and 'was due to the fault or neglect of the carrier', ie the Convention imposes a duty on the carrier to act reasonably in preventing injury to passengers. The Athens Convention 2002 alters that regime by imposing strict liability for injuries and death up to a certain amount (250,000 SDRs) and imposing liability up to a higher amount (400,000 SDRs) unless the carrier can disprove negligence.

In substantial parts of the world, including in Bermuda where the Ruby Princess is flagged, a duty such as that disputed by the respondents in the present case on the basis that it would be novel and burdensome, is imposed either by Convention or domestic law. There is no suggestion that this has imposed an intolerable burden on cruise lines. What it means is that the focus of any claim is on the conduct of the cruise line and whether it was negligent.

An example is Nolan v TUI (UK) Ltd [2016] 1 Lloyd’s Rep 211 [91] (Central London County Court) where the claims arising from a norovirus outbreak on board were dismissed on the basis that the defendant had discharged its duty of care to the claimants - the ship had correctly followed its own policy, which included detailed provisions as to cleaning and food handling (see also CMI479). Another example is Swift v Fred Olsen Cruise Lines [2016] EWCA Civ 785 (CMI4). There, the cruise line was held liable for the claims arising from a norovirus outbreak on the basis that it had not adequately implemented its own norovirus outbreak plan.